STEINE & ASSOCS., P.C. Atty. For Plaintiff
RONALD D. WEISS, ESQ., Atty. For Def. Izmirligil, ERIC T. SCHNEIDERMAN, New York State Attorney General
THOMAS F. WHELAN, J.S.C.
Upon the following papers numbered 1 to 8 read on this motion by the plaintiff for an order relieving it of any obligation to file the attorney affirmation required by post-commencement Administrative Orders; Notice of Motion/Order to Show Cause and supporting papers 1 - 3; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 4-5; Reply papers 6-7; Other: 8 - November 20, 2103 correspondence from the New York State Attorney General's Office of non-participation; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (#003) by the plaintiff for an order relieving it of any obligation to comply with the affirmation requirements imposed upon counsel for foreclosing plaintiffs in residential mortgage foreclosure actions by the terms of certain Administrative Orders and/or Rules issued by the Chief Administrative Judge subsequent to the commencement of this action, is considered under 22 NYCRR 202.1(b) and the relevant provisions of the CPLR 3001, New York State Constitution, Article VI, and the Judiciary Law, and is granted to the extent set forth below.
The plaintiff commenced this mortgage foreclosure action by filing its summons and complaint with the Clerk on November 30, 2009. At issue is the nonpayment of a mortgage in excess of one million dollars given by the defendant mortgagor, Arif Izmirligil, in July of 2006. The default in payment of monthly amounts due for interest and principal under the note and mortgage occurred on May 1, 2009 and such default continues to date. On December 3, 2009, defendant Izmirligil was served, pursuant to CPLR 308(1), with process bearing the statutorily required notices and warnings and the complaint. Defendant Izmirligil defaulted in timely answering or otherwise appearing in response to such service.
In February of 2010, defendant Izmirligil moved to vacate his default and for leave to serve a late answer. By order dated July 16, 2010, this court denied the motion (#001). The defendant then moved (#002) for leave to renew and reargue his original motion. On September 22, 2010, this court denied the renewal and reargument motion, after which, defendant Izmirligil challenged these orders by taking an appeal therefrom. By order dated October 25, 2011, the Appellate Division, Second Department rejected the defendant's claims of error and affirmed both orders of this court (see Mellon v Izmirligil, 88 A.D.3d 930, 931 N.Y.S.2d 667 [2d Dept 2011]). The default in answering of defendant Izmirligil, which was admitted in his original moving papers and judicially confirmed in these orders, thus stands as fixed and determined for all purposes in this action.
Thereafter, defendant Izmirligil filed suit against the plaintiff in federal court (N.Y.E.D. CV11-5591) charging it with wrongful foreclosure of the subject mortgage by its institution of this action and with deceptive practices in the origination of the loan and violations of the Fair Debt Collection Practices Act. All of these claims were dismissed upon motion of the bank by an order dated April 15, 2013 (see Memorandum & Order of the Honorable Leonard D. Wexler, District Court Judge, attached as Exhibit A to the plaintiff's reply papers).
By the instant motion (#003), the plaintiff seeks, in effect, a declaration that certain attorney affirmation requirements imposed upon counsel for foreclosing plaintiffs by Administrative Orders promulgated by the Chief Administrative Judge are unconstitutional and impermissibly require such counsel to violate the attorney/client privilege they are ethically bound to forever honor and preserve. The motion was served upon defendant Izmirligil who appeared by service of opposing papers prepared by his counsel. In addition, the defendant submitted a self-composed letter demanding that this court recuse itself from presiding over any proceeding in this action. Since, however, this letter demand constitutes, among other things, an impermissible separate appearance by a party who is represented by counsel without the consent of the court (see CPLR 321[a]), the court will not entertain it.
The court is also in receipt of a letter from the Attorney General's Office dated November 20 2013 in which receipt of papers with respect to the instant motion pursuant to Executive Law §71 and CPLR 1012(b)(1) was acknowledged "because there is a purported constitutional challenge to a State a statute" (see letter dated November 20, 2013 by Andrew D. Bing, Deputy Solicitor General, State of New York, Office of the Attorney General). Deputy Solicitor Bing further advised that his office "would not be participating in the above entitled matter at this time" but "would appreciate being advised of any final decision", as his office may intervene at a later stage.
The court considers the opposing papers prepared by the defendant's counsel improper for two reasons. First, the opposing papers consist of a document entitled "Attorney Affirmation in Opposition to Plaintiff's Motion" that is not affirmed under penalties of perjury by the defendant's attorney as required by CPLR 2106. Nor is it sworn to by defendant Izmirligil. Instead, counsel's affirmation contains an attached verification by the defendant and documentary exhibits. There is thus neither an affidavit nor an affirmation in which allegations of fact are sworn to or affirmed under penalties of perjury. Moreover, defense counsel failed to attach the certification of non-frivolous contentions and other matters required by the rule at 22 NYCRR 130-1.1(b).
Second, as a party whose default in answering has been finally adjudicated, defendant Izmirligil is "deemed to have admitted all of the factual allegations contained in the complaint and all reasonable inferences that flow therefrom" (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727 ). In the absence of a reversal or vacatur of such adjudicated default, which is not available to defendant Izmirligil due his unsuccessful appeal of his vacatur motion, his further participation in proceedings held in this action is limited to contesting the issues concerning amounts due under the terms of the mortgage at any reference directed or assessment made by the court pursuant to RPAPL §1321 (see CPLR 3215[g]; ; Rokina Opt. Co. v Camera King, 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197 ; Reynolds Sec., Inc. v Underwriters Bank & Trust Co., 44 N.Y.2d 5, 406 N.Y.S.2d 743 ; Santiago v Siega, 255 A.D.2d 307, 679 N.Y.S.2d 341 [2d Dept 1998]; Yeboah v Gaines Serv. Leasing, 250 A.D.2d 453, 673 N.Y.S.2d 403 [1st Dept 1998]), and/or to contesting the plaintiff's compliance with procedural requirements imposed upon any application for a default judgment by the other provisions of CPLR 3215 (see CPLR 3215[g]; 3215[c]; Giglio v NTIMP, Inc., 86 A.D.3d 301, 926 N.Y.S.2d 546 [2d Dept 2011]; Deutsche Bank Natl. Trust Co. v Pascarella, 39 Misc.3d 1227[A], 971 N.Y.S.2d 70 [Sup. Ct. Suffolk County, 2013]; Bank of New York Mellon v Piercey, 40 Misc.3d 1219[A], 975 N.Y.S.2d 707 [Sup. Ct. Suffolk County, 2013]). Defendant Izmirligil is thus without an entitlement to be heard in opposition to this motion or to demand affirmative relief in his favor (see e.g., U.S. Bank Natl. Ass'n v Gonzalez, 99 A.D.3d 694, 952 N.Y.S.2d 59 [2d Dept 2012]; Deutsche Bank Trust Co., Am. v Stathakis, 90 A.D.3d 983, 935 N.Y.S.2d 651 [2d Dept 2011]; Deutsche Bank Natl. Trust Co. v Posner, 89 A.D.3d 674, 933 N.Y.S.2d 52 [2d Dept 2011]; Citimortgage, Inc. v Guarino, ___A.D.3d ___, 2014 WL 43887 [Sup. Ct. Suffolk County, 2014]; Deutsche Bank Natl. Trust Co. v Espinoza, 39 Misc.3d 1238[A], 2013 WL 2493846 [Sup. Ct. Suffolk County, 2013]; US Bank Natl. Ass'n v Orellana, 40 Misc.3d 1204[A], 975 N.Y.S.2d 370 [Sup. Ct. Suffolk County, 2013]; see also Unsettled Times Make Well—Settled Law: Recent Developments in New York State's Residential Mortgage Foreclosure Statutes and Case Law", Dillon, J., 76 Albany Law Review 1085, p. 1105 [2012—2013]).
The forgoing circumstances clearly warrant the court's rejection, without consideration, of the defendant's submissions in opposition to the plaintiff's motion. Since, however, the plaintiff served defendant Izmirligil with its moving papers thereby inviting his response, which was not objected to except for the inclusion of demands for affirmative relief, the court has read and considered the legal arguments advanced in defendant's opposing papers. His objection to the timeliness of the plaintiff's reply is, however, rejected and all affirmative demands for relief are denied.
In its moving papers, the plaintiff demands an order relieving it of any obligation to comply with attorney affirmation requirements imposed through the promulgation of Administrative Orders of the Chief Administrative Judge after the commencement of this action. These highly unusual Administrative Orders were adopted and implemented following the dissemination of widely publicized national media accounts of misdeeds and other misconduct in the preparation of foreclosure papers by mortgagees in states other than New York. Concern on the part of court administrators that such misdeeds and misconduct would infiltrate New York foreclosure proceedings and compromise the veracity of alleged facts and the propriety of the procedures employed in the preparation of affidavits of merit submitted in residential New York foreclosure actions was the apparent basis for the issuance of the Administrative Orders numbered 548/10 and 431/11 (see Affirmation Form—Preamble attached to AO 548/10 and 431/11). These orders or rules, as they are sometimes referred to, impose vouching requirements only upon counsel for foreclosing plaintiffs in pending residential foreclosure cases in which a sale has not yet occurred. The plaintiff's counsel must independently verify the content accuracy of affidavits of merit and other supporting papers and the propriety of the notarizations affixed thereto in the subject foreclosure action upon the application for the order of reference, the final judgment or, if already issued, ...